The postings of a customs lawyer in Chicago on the state of customs law and international trade law. Important Disclaimer: None of this is legal advice, don't act on it. Don't ascribe these statements to my law firm, its partners or clients. Don't steal from my blog. I wrote it, I own it. But, feel free to link to me. Also, under the rules regulating speech by attorneys, this blog may be construed as lawyer advertising. I am the sole party responsible for the content.

Wednesday, June 24, 2009

Gilda Toasts US in Court

Gilda Industries v. U.S. has been going on for a while now. The underlying issue is whether the U.S. properly assessed retaliatory duties on Gilda's imported toasted breads as part of the EC-Beef Hormones dispute. In this version of the case, Gilda is claiming that the authority to impose those duties expired in 2007 and it wants a refund of duties it improperly paid.

The genesis for this case is a dispute between the U.S. and the European Commission over a rule prohibiting the importation of hormone treated beef into Europe. The WTO found the ban to lack a scientific basis and authorized U.S. retaliation. The U.S. implemented that retaliation in the form of 100% duties on a number of products including toast (which, by the way, I find an odd product to import).

Under the law (specifically 19 USC sec. 2417(c)) any retaliation in effect will automatically expire after four years unless the affected domestic industry requests an extension. In an earlier effort to get out from under the duties, Gilda lost because a request had been made. Now, four years later, it appears no such request had been made. According to the government, the retaliation did not expire by operation of law because the USTR failed to provide notice of that possibility.

The Court of International Trade (via Senior Judge Musgrave) disagreed. According to the Court, the statute clearly states that retaliation is limited to four years absent a request for extension. Thus, the interested industry should have known of the possibility. Further, other sections of law relating to the USTR clearly link public notice to USTR action). Consequently, the Court did not want to insert such a linkage where Congress had not.

Thus, the retaliation expired by operation of law in 2007. Duties paid as a result to the Beef Hormone dispute after July 29, 2007 were improperly collected. The Court ordered the entries reliquidated to provide refunds to the importer.

So, if you have been paying duties under this retaliatory regime, fire up your lawyers. You might have a refund coming your way. The U.S. will almost certainly appeal and there is no guarantee that this case will stand. But, you should still consider getting your claim before the CIT. Failing to do so in a timely manner might result in your inability to recover at all.